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Rehnquist's Health and Vote Contingencies

But there was one case that the court voted on at conference with Jackson participating -- and decided after his death.

It involved a motion by Abraham J. Isserman, a defense attorney for leaders of the American Communist Party, to overturn his expulsion as a member of the Supreme Court bar. Isserman had been disbarred by the state of New Jersey because he had been found in contempt of a federal court.

Chief Justice William Rehnquist is undergoing treatment for thyroid cancer. (File Photo)

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On April 6, 1953, the Supreme Court ruled that this was grounds to strip him of his Supreme Court bar membership as well. The vote was 4 to 4; sufficient, under the court's then-prevailing rules, to uphold a disbarment. Justice Tom C. Clark did not participate. Jackson dissented.

Then two things happened: Chief Justice Fred M. Vinson, who had voted to disbar Isserman, was replaced by Earl Warren. And the court changed its rules. Now, a tie would favor Isserman.

Isserman asked the court for a rehearing. His petition was considered at conference during the first week of October, with Jackson participating. Warren and Clark sat the case out -- leaving only seven justices participating.

Isserman's request for a rehearing was granted by the required majority vote of 4 to 3, with Jackson and the other three dissenters now in the majority, according to John Q. Barrett, Jackson's biographer and a professor of law at St. John's University. The same 4 to 3 majority voted in favor of Isserman's remaining in the bar.

On Oct. 9, Jackson died. But five days later the court issued its ruling in Isserman's case, under the heading "decided October 14, 1954."

The fact that the court did not dismiss the case shows that it let Jackson's conference vote in favor of granting a rehearing stand.

But the court's brief unsigned opinion strongly implies that it did not count Jackson's vote in favor of Isserman on the merits of the case. Rather than declaring that Isserman had won 4 to 3, it noted only that "a majority of the Justices participating did not find ground for disbarment." Then it listed the names of three dissenting justices -- suggesting that the end result was a 3 to 3 tie.

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